Rights and Privileges

One thing that I find fascinating about “copyright” is what it actually means to have this “right to copy”.

Though we tend not to think of it like this, really, it does not give the owner of the copyright the right to duplicate and publish this work; it gives the owner of the copyright the “right” to prevent other people from duplicating and publishing this work. It is a “right” that gives the owner the ability to control the actions of other people, to prevent them from having access to information.

And really, in the American understanding, it is not a “right” in the same way that there are rights to life, liberty, and the pursuit of happiness. The Constution establishes copyright by saying that Congress shall have the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Copyright is, according to the Constitution, not a natural right; it is created by the government, a privilege really, which limits the rights of everyone besides the owner of each copyright. It is created because it is thought that, by limiting everyone’s rights, “authors and inventors” can be encouraged to produce more so that the “progress of science and useful arts” can be promoted.

But the goal of copyright is not to guarantee the prosperity of authors or inventors – it is to promote the progress of science and useful arts. If we could promote the arts and sciences without limiting the rights of everyone besides the individual authors and inventors (and, really, since more than one person owns an exclusive copyright, everyone’s rights are limited by copyright), we ought to do so. And Congress does not even have the power, let alone a mandate, to make copyright any more powerful than necessary to “promote the sciences and useful arts”.

In fact, it seems to me that the way copyright is implemented currently is somewhat unconstitutional. Not only because it is in effect not “limited”, as the clause says it must be (though Lawrence Lessig lost the Supreme Court case in which he made that argument), but because it isn’t doing what it is supposed to do – copyright as it is now stifles, not encourages, innovation.

Of course it would be pretty much impossible to make that argument in a court, since one could always say that how copyright currently is implemented does in fact promote the arts and sciences, but that doesn’t make it not true.

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